Herrmann v. Brown

KRAMER, Judge,

concurring: A comparison of the terms of the Court’s remand order with a subsequent BVA remand decision directing additional development can result in only three possibilities: (1) the BVA conduct in question is clearly within the scope of the Court’s remand order; (2) the conduct in question is not specifically included in the remand order, but is not precluded by the *64 remand order; or (3) the conduct in question is clearly outside the scope of the remand order. Here, the Court’s remand order included permission for the petitioner to “submit additional evidence and argument,” Gary L. Herrmann, No. 93-1158, slip op. at 2, 1994 WL 387231 (U.S.Vet.App. July 18, 1994) (order), thereby clearly contemplating the possibility of additional development of the record. Furthermore, the remand order in no way limited the developmental discretion that the BVA is authorized to exercise pursuant to regulation and the Court’s ease law. See 38 C.F.R. § 19.9 (1994) (BVA shall remand case to the regional office if it determines that further development is needed); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (BVA is free to supplement the record with medical examination or advisory opinion if medical evidence of record is insufficient). Thus, I would conclude that the development ordered by the BVA is, at a minimum, a category (2) matter clearly authorized by law.